A vigorous defense for Mr. Hussein -- or, what the lawyer might say

By Leon D'Souza

January 12, 2005 | Mr. President and Members of the Tribunal:

My client and I stand before you with no illusions of an impervious barrier between politics and the corpus of international law. We know from the course of history that such a barrier is difficult to erect when the interests and demands of so many nations are brought to bear on the outcome of a trial.

We have already seen an evident hastiness on the part of the United States to move these proceedings along. This was obvious when my client was first brought before this court in July and asked to sign a list of charges against him without the presence of legal counsel. Surely, this court does not believe that a constitutional mandate for a "speedy trial" is tacit sanction for legal short-cuts that could threaten the legitimacy of these proceedings.

Then again, we understand the weight of the burden that goes along with this court's prime directive. It is conceivable that a drawn-out process might, in the words of Washington University law Professor Leila Sadat, "tend to destabilize Iraq and pit Iraqis against each other." Politics, therefore, is at the heart of these hearings.And it is in cognizance of this fact that we must exercise great caution.

Because, in the words of Corazon Aquino, former president of the Philippines, "While we all hope for peace, it shouldn't be peace at any cost but peace based on principle."

Here, the words of Justice Robert Jackson, chief prosecutor for the United States at the Nuremberg trials, might serve as guiding wisdom. In his summation for the prosecution, Jackson noted eloquently that, "It is common to think of our own time as standing at the apex of civilization, from which the deficiencies of preceding ages may patronizingly be viewed in the light of what is assumed to be 'progress.'"

But, he continued, "The reality is that in the long perspective of history the present century will not hold an admirable position, unless its second half is to redeem its first."

We are thus faced with the challenge of redeeming and rebuilding Iraq after clearing away the rubble from years of fighting, destruction, civil and international war. We are charged with laying the foundations of a new state that will serve as a model for stability in the Middle East. This is no meager task.

Sorting through the wreckage of decades of political chaos in search of some kind of truth is an exercise in revisionist history. What we may today see as unpardonable barbarism may have been, at some point, necessary injustice in service of a greater geopolitical good. For example, my client stands accused of, among other things, "ordering a 1988 poison gas attack on Iraqi Kurds," as reported by MSNBC News Services.The story, which appeared online the same day my client first appeared before this court, conveniently omitted any mention of the controversy surrounding the poison gas attacks at Halabja.

And there remains, contrary to the opinion of the United States, plenty of disagreement over exactly what happened during that unfortunate phase of the Iran-Iraq war.

To quote Stephen C. Pelletiere, the Central Intelligence Agency's senior political analyst on Iraq during the war, and a professor at the Army War College from 1988 to 2000, "The truth is, all we know for certain is that Kurds were bombarded with poison gas that day at Halabja. We cannot say with any certainty that Iraqi chemical weapons killed the Kurds."

Writing in The New York Times in 2003, Pelletiere pointed out that there exist several distortions in the Halabja story. The only known facts, according to him, are these: "It came about in the course of a battle between Iraqis and Iranians. Iraq used chemical weapons to try to kill Iranians who had seized the town, which is in northern Iraq not far from the Iranian border. The Kurdish civilians who died had the misfortune to be caught up in that exchange . . ."

The condition of the dead Kurds' bodies, however, indicated they had been killed with a blood agent – that is, a cyanide-based gas – which Iran was known to use. The Iraqis, who are thought to have used mustard gas in the battle, are not known to have possessed blood agents at the time.

For all we know, it was not the Iraqi army acting at my client's behest but the Iranian forces that orchestrated the gassing at Halabja. And yet, my client stands accused of this crime. What's more, if my client is to be accused of using chemical agents in the battle against the Iranians, then the United States must also stand trial as an accessory to the offense.

Agence France Presse reported in 2002 that U.S. government documents from 1985 to 1989 show that "pathogenic, toxigenic, and other hazardous materials were legally exported from the United States to Iraq" during the conflict with Iran.

The list of biological items legally exported during that period includes botulinum toxin, anthrax, gas gangrene, and vials of West Nile fever virus and Dengue fever. The items were shipped by the American Type Culture Collection, a non-profit group that provides biological materials to institutions around the world, and the Centers for Disease Control in Atlanta, the report revealed.

Defense Secretary Donald Rumsfeld, it has been suggested, "traveled to Baghdad in December 1983 with a message from then-president Ronald Reagan that Washington would provide help in the Iraqis' war with Iran."

According to the AFP report, "Rumsfeld denied any knowledge of the trip, but promised to review Pentagon records." It is our position that Mr. Rumsfeld should be required to respond to these allegations as their truthfulness could have a bearing on how my client is perceived by the world at large.That aside, the so-called "gassing at Halabja" is not the only charge that lacks credibility.

Virtually all of the other charges – the Anfal "ethnic cleansing" campaign against the Kurds in 1988, the invasion of Kuwait in 1990, crushing the Kurdish and Shia rebellions after the 1991 Gulf War, killing political activists over three decades, massacring members of the Kurdish Barzani tribe in 1983 and killing religious leaders in 1974 – seem to opportunely disregard my client's then position as the recognized leader of Iraq who, at the time, was facing a political rebellion that threatened the sovereignty and integrity of the state he had sworn to protect.

Let us not forget that even the United States, with its penchant for moral grandstanding, has at some time been guilty of perpetrating comparable atrocities in the name of national security.

Consider, for example, the treatment meted out to Japanese-Americans held at the Heart Mountain War Relocation Center in northwestern Wyoming during World War II.

According to the invaluable Wikipedia encyclopedia on the Web, "[The camp] was a barbed-wire-surrounded enclave with unpartioned toilets, cots for beds, and a budget of 45 cents daily per capita for food rations. Because most internees were evacuated from their West Coast homes on short notice and not told of their destination, many failed to pack appropriate clothing for Wyoming winters which often reached temperatures below zero Fahrenheit."

Similar human rights violations persist at Guantanamo Bay on Cuba's eastern tip, where some 680 detainees from 42 countries are being held in legal limbo by the United States, classified as "neither POWs nor criminal suspects," according to CBS News.

There, "They have no constitutional rights as non-U.S. citizens being held outside U.S. territory, and none have been formally charged or allowed access to attorneys.The only justification offered by the Bush Administration, according to The Times of London, is that the prisoners are "illegal non-combatants picked up off of the battlefield." Clearly, the humanitarianism of the Bush White House is an illusion built on political opportunism and semantic convenience rather than moral principle.

But this is beside the point. I present these instances only to suggest that there is precedent for mistreatment at the hands of government during times of war and civil strife. It isn't that governments seek to torment their own citizens in times of war, but the very nature of war that causes a selfish lack of human decency. If, in the end, we desire the welfare of humanity, we must seek to end sources of conflict – internally and externally.

My client did what he thought was best to hold together a nation caught in the divisive grip of deep-rooted ethno-religious discord – a cultural battle that dates back to the final collapse of the Ottoman Empire in 1922. To borrow a concept from the study of economics, he was, in a sense, endeavoring to establish a Keynesian state of planned equilibrium – protecting the present from any future catastrophe. It's a preventive notion, something the current U.S. administration understands well.

My client did not set out to harm Shiite and Kurdish populations in quest of hedonistic delight. He took preventive measures against groups who were in open rebellion against his government.Since the Age of Enlightenment, governments around the world have recognized the need for "orderly and comprehensible function of government."

Wikipedia notes, for example, that the "Enlightened Despotism" of Catherine the Great of Russia was not "based on mystical appeals to authority, but on the pragmatic invocation of state power as necessary to hold back chaotic and anarchic warfare and rebellion." My client acted decisively to preserve Iraq's national integrity. This is, without doubt, a defensible strategy.While it is clear to me that the measures sanctioned by my client were carried to inhumane limits by his subordinates, I am at pains to point out that there is no evidence directly linking my client to any of the alleged acts. The connection is, at best, attenuated. If the argument is that, as sovereign of Iraq, my client had to have known about the abuses, I need only suggest that the same case might be made for the horrifying mistreatment of POWs at Abu Ghraib by trained officers of the so-called civilized world.

Without belaboring the point, allow me to suggest in the words of Barbara Bush, "War is not nice."

To bring this trial to a satisfactory conclusion, we must not let our passions and our simplistic sense of right and wrong interfere with a careful analysis of the evidence in the context of a long history of religious and ethnic conflict in Iraq. Let muscle not be the reality of this trial. Let the world not look back on these proceedings as they are recorded into history and view them as a vindication of the longstanding assertion that truth is the first casualty of war, and that history, as Napoleon put it, is merely a fable agreed upon.

Let this courtroom see that justice is done.

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